FOR IMMEDIATE RELEASE: News Media Contact:
June 27, 2001 Paul Gallant at 202-418-2300
PRESS STATEMENT OF COMMISSIONER GLORIA TRISTANI
Re: Enforcement Bureau Letter Ruling on Indecency Complaint
Against WTXF-TV, Philadelphia, Pennsylvania
The FCC's Enforcement Bureau has dismissed an indecency complaint filed by Ms.
Cherie Degnan of Ambler, Pennsylvania. On January 23, 2001, Ms. Degnan wrote to the
FCC's Enforcement Bureau and explained that, earlier that day, "full frontal male and
female nudity was broadcast as part of a News Program" on WTXF-TV of Philadelphia,
Pennsylvania. According to Ms. Degnan, those images were broadcast at approximately
8:53 a.m. without advance warning from the television station. The Enforcement Bureau
dismissed Ms. Degnan's complaint because, according to the Bureau, her failure to
provide a "tape, transcript, or significant excerpts" of the broadcast prevented the Bureau
from determining whether the images broadcast were indecent in context.
At the outset, I would note that that the Bureau letter dismissing Ms. Degnan's
complaint seems to rely erroneously on the First Amendment to justify the procedural
hurdles involved with the filing of indecency complaints. The Enforcement Bureau tells
Ms. Degnan that "the FCC generally requires complainants to provide a full or partial tape
or transcript or significant excerpts of the program" because a broadcaster's speech has
certain protections under the First Amendment.
In fact, the First Amendment has nothing to do with the Bureau's evidentiary
standard for complaint filing. The First Amendment simply ensures that, once all the
evidence is in, the FCC does not punish broadcast speech that is not indecent. The First
Amendment does not require a certain level of proof in a citizen's complaint to the FCC.
The FCC is free to gather evidence however it wants - from complainants or from
broadcasters.
These complaint filing requirements (tape, transcript, or significant excerpt) are not
only unrelated to the First Amendment, they are disconnected from reality. People do not
normally tape or transcribe the programs they are watching or listening to, and thus it is
unfair to expect people file such material with their complaints. If for some reason the
complainant happens to have that information, the easier it will be for the Commission to
evaluate the complaint. But failing to produce that kind of documentation should not
result in dismissal of indecency complaints, as is the Bureau's general practice.
As to Ms. Degnan's specific complaint, there is no disagreement that context is
critical in determining whether the broadcast of a particular statement or image is
indecent. We know from Ms. Degnan's letter that male and female frontal nudity was
televised in the morning, when children are likely to be in the audience. We also know
that courts have affirmed the Commission's ban on the broadcast of "material that, in
context, depicts or describes, in terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual or excretory activities or organs."
Since Ms. Degnan's complaint appears to describe the televised broadcast of "sexual
organs" - in her words "full frontal male and female nudity" - during the time of day when
indecent broadcasting is prohibited, it is certainly possible that the Bureau would have
found an indecency violation. In my view, the complaint contained sufficient evidence to
begin an investigation into whether the context of this nudity amounted to an indecent
broadcast. At a minimum, Ms. Degnan's complaint merited more than the summary
dismissal it received from the Bureau.
In sum, the Bureau has continued to enforce unreasonable filing requirements for
indecency complaints (tape, transcript, or significant excerpt). The Bureau then failed to
mitigate that problem by deciding not to contact WTXF to inquire about Ms. Degnan's
complaint. The Bureau's action - or inaction - in this case will further embolden
broadcasters to ignore the FCC's rules against indecent broadcasting, and in so doing,
encourage them to air material that is harmful to children.
I sincerely hope the Commission will reevaluate its handling of indecency
complaints. The indecency complaint process, as presently configured, tilts sharply in
favor of broadcasters and against members of the public who wish to register an indecency
complaint. Surely there is a more effective way of enforcing Congress's ban on indecent
broadcasting while affording all due fairness to broadcasters. Making the complaint
process more accessible to the public would be good public policy and would more
faithfully comply with Congress's directives to the FCC regarding broadcast indecency.